IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140825

Docket: M121254

Registry:
Vancouver

Between:

Janine Luce

Plaintiff

And

Gurbinder Singh Brar
and Satbir Kaur Brar

Defendants

– and –

Docket: M121255

Registry:
Vancouver

Between:

Nigel Luce

Plaintiff

And

Gurbinder Singh
Brar and Satbir Kaur Brar

Defendants

Before:
District Registrar Nielsen

Reasons for Decision

introduction

[1]            
On April 22, 2011, Ms. Janine Luce and Mr. Nigel Luce were
injured in a motor vehicle accident when an oncoming vehicle crossed the centre
line, striking the Luce vehicle head-on. Liability was admitted.

[2]            
As a result of the motor vehicle accident, Ms. Luce sustained soft
tissue injuries to her neck, back, and right knee. She also developed
post-traumatic stress disorder (PTSD) and other psychological issues.

[3]            
The injuries to Mr. Luce were more severe. He suffered compression
fractures at L1 through L3, allegedly sustained a concussion, tinnitus, a
labral tear to his right hip, and chronic back pain.

[4]            
The Notice of Civil Claim was filed on March 2, 2012. A trial date was
scheduled for March 31, 2014, for nine days, wherein both actions were to be
heard together. Both actions settled on February19, 2014, for a global amount
of $250,000.

[5]            
Counsel for the plaintiff expresses the view that 80% of the settlement
amount would have been allotted for Mr. Luce’s injuries and 20% for Ms. Luce’s
injuries.

[6]            
As part of the settlement, both actions were dismissed by consent order,
with costs payable to each plaintiff.

[7]            
In the Janine Luce action, all tariff items and amounts are agreed by
the parties. The only issues in dispute are the disbursements for a
psychological assessment report authored by Dr. Goldstein, dated October
25, 2013, in the amount of $3,162.50; and, a medical-legal report of Dr. Reebye,
dated October 24, 2013, in the amount of $4,500.

[8]            
In the Nigel Luce action, all tariff items and amounts are agreed to,
with the exception of tariff item 2. The disbursements in dispute in the Nigel
Luce action are: the MRI report pertaining to Mr. Luce’s head dated
November 26, 2013, in the amount of $1,497.79; the medical-legal report of Dr. Neil
Longridge dated September 17, 2013, in the amount of $4,250; the cost of
testing at VGH, performed for Dr. Longridge on September 11, 2013, in the
amount of $700; the medical-legal report of Dr. Kostamo dated September 5,
2013, in the amount of $4,800; the psychological assessment report of Dr. Goldstein
dated November 26, 2013, in the amount of $4,400; and, finally, the
medical-legal report of Dr. Reebye dated November 27, 2013, in the amount
of $5,000.

legal principles

Tariff Items

[9]            
The Registrar is to allow fees with respect to work that was proper or
reasonably necessary to the proceeding, and must consider Civil Rule 1-3
(object of the Rules).

[10]        
The issue of which fees and outlays claimed should be allowed must be
determined objectively. A step was necessary if it was indispensable to the
conduct of the proceeding. A step was proper if it was not necessary, but was
nevertheless reasonably taken or incurred for the purpose of the proceeding.

[11]        
In fixing the number of units for items where a minimum and a maximum
number of units is allowed, the Registrar is to allow:

(a)           
the minimum unit for matters upon which little time should ordinarily
have been spent; and

(b)           
the maximum unit for matters upon which a great deal should ordinarily
have been spent.

[12]        
As stated by Registrar Sainty in Fairchild v. Vancouver Coastal
Health Authority, 2011 BCSC 616, para. 24:

[24]      …. in deciding the
proper number of units to award in respect of each tariff item, I must compare
this case with all of the other cases that come before the court and decide
where it fits in the spectrum of them. Was it a simple, straightforward (i.e.
“run of the mill”) case; or was it litigation involving numerous parties,
extensive legal issues, numerous experts and involving large sums of money?

[13]        
Registrars must have regard to the particular circumstances of the
proceeding in which the costs are claimed when deciding how many units within
the prescribed range should be allowed.

[14]        
Counsel for the plaintiff, Mr. Luce, acknowledges that Mr. Luce’s
file “was not a huge file”, but he emphasizes that there were many different
injuries at play requiring detailed investigation. He emphasizes the portion of
settlement allotted to Mr. Luce’s claim was in the range of $200,000 of
the global settlement amount. Counsel for the plaintiff acknowledges that
fixing the appropriate tariff units is not a science and suggests 23 units are appropriate
in the circumstances.

[15]        
Defence counsel emphasizes the lack of evidence in the affidavits of the
amount or type of work done in relation to Mr. Luce’s claim. Defence
counsel further emphasizes that the case was in fact “run of the mill”, wherein
the proceedings went “very smoothly”. Defence counsel cites Prehara v. Royer,
2007 BCSC 912, where District Registrar Bouck (as she then was) awarded 15
units under the prior tariff for an action which proceeded for nearly five
years, settled ten days before trial, and in which the defendants had denied
liability.

[16]        
Defence counsel submits that there was no denial of liability in Mr. Luce’s
action and there were only 23 months between the Notice of Civil Claim and the
ultimate settlement of the proceeding.

[17]        
Taking the submissions, evidence and legal principles into account, 18
units are awarded for tariff item 2, with respect to Mr. Nigel Luce.

disbursements

Legal Principles

[18]        
The applicable legal principles that must be applied with respect to
disbursements are summarized in Turner v. Whittaker, 2013 BCSC 712, at para. 5,
wherein Master MacNaughton stated:

[5] Counsel were also able to agree on the following legal
principles which are applicable on an assessment of disbursements:

1. Rule 14-1(5) requires an assessing officer to determine
which disbursements were necessarily or properly incurred in the conduct of a
proceeding and to allow a reasonable amount for those disbursements.

2. The consideration of whether a disbursement was
necessarily or properly incurred is case-and circumstance-specific and must
take into account proportionality under Rule 1-3. (Fairchild v. British
Columbia (Vancouver Coastal Health Authority), 2012 BCSC 1207).

3. The time for assessing whether a disbursement was
necessarily or properly incurred is when the disbursement was incurred not with
the benefit of hindsight. (Van Daele v. Van Daele, 56 B.C.L.R. 176 (SC)
rev’d 56 B.C.L.R. 178 at para. 4 (CA))

4. A necessary disbursement is one which is essential to
conduct litigation; a proper one is one which is not necessary but is
reasonably incurred for the purposes of the proceeding. (McKenzie v. Darke,
2003 BCSC 138, para. 17-18)

5. The role of an assessing officer is not to second guess a
competent counsel doing a competent job solely because other counsel might have
handled the matter differently. (McKenzie v. Darke, 2003 BCSC 138, para.
21).

[19]        
What follows is an assessment of the disbursements that remain in
dispute in both the Janine Luce and Nigel Luce actions, keeping in mind the applicable
legal principles.

Disbursements for Ms. Janine Luce

Medical-Legal Report of Dr. Reebye dated October 24, 2013

[20]        
An affidavit of justification was filed by plaintiff’s counsel.
Plaintiff’s counsel attests that Dr. Reebye, a physiatrist, was retained to
assess Ms. Luce’s injuries and to opine on her rehabilitation needs.

[21]        
Dr. Reebye opined that Ms. Luce was partially disabled as a
result of chronic myofascial neck, shoulder and back pain, and anxiety
symptoms. He further opined that Ms. Luce would benefit from an exercise
program, psychological assistance, an ergonomic assessment, and a trial of an anti-inflammatory
cream.

[22]        
The affidavit of plaintiff’s counsel opines that, in his view, the
$4,400 fee for the nine hours of work was reasonable.

[23]        
At the hearing, plaintiff’s counsel emphasizes the view that obtaining
the opinion of a physiatrist in view of Ms. Luce’s chronic myofascial
pain, was necessary and properly incurred. Plaintiff’s counsel concedes that Ms. Luce’s
general practitioner, Dr. Mendoza, did diagnose pain in his report dated
October 25, 2013, but that opinion would have been subject to attack by the
defendants on the basis that a general practitioner is an advocate of the
patient, is personally involved, and has no expertise in pain. Plaintiff’s
counsel further emphasizes the importance of having a general practitioner’s
opinion and also that of a specialist in pain. He characterizes similar
diagnoses in each report as “overlap, not duplication”.

[24]        
Plaintiff’s counsel also emphasized that Dr. Mendoza’s five-page
report consisted of an introduction, three pages of clinical history, and a
five-bullet conclusion. There is certainly no assurance that the report of Dr. Mendoza
would not have been subject to the types of attack suggested by plaintiff’s
counsel in the event the matter had proceeded to trial.

[25]        
Defence counsel asserts that the report of Dr. Reebye dated October
24, 2013, was unnecessary. She emphasizes that when Dr. Reebye’s report is
compared to that of Dr. Mendoza, Dr. Reebye’s opinion adds nothing to
the diagnosis of the general practitioner. Accordingly, in her submission, Dr. Reebye’s
report was simply the same as that of Dr. Mendoza, and therefore added
nothing to the proceeding.

[26]        
Defence counsel refers to the case of Dhillon v. Bowering, 2013
BCSC 1178, wherein the Court states at paras. 77-80:

[77]      The defendants claim that Dr. Shuckett simply
repeated the findings of Dr. Gilbart and, further, that she opined on areas
that were outside of her expertise and therefore it was neither necessary nor
proper for the plaintiff to retain Dr. Shuckett and I ought to disallow all of
the costs for Dr. Shuckett.

[78]      Dr. Shuckett is an expert in internal medicine and
rheumatology. Her qualifications also note that she has some expertise in
fibromyalgia, a form of pain syndrome often suffered by persons who have been
involved in motor vehicle accidents.

[79]      In preparing her report, Dr. Shuckett met with the
plaintiff and took a thorough medical history. She reviewed the MRI arthrogram
of the plaintiff’s left shoulder. She opined that she did not believe the
plaintiff had chronic pain syndrome and that he does not have fibromyalgia
syndrome. Dr. Shuckett recommended that the plaintiff may need intermittent
physiotherapy treatments but she left it to Dr. Gilbart to assess whether the
plaintiff required a hip arthroscopy and to Dr. Gilbart’s expertise to decide
if the plaintiff may find relief from cortisone injections.

[80]      I conclude that an
insufficient basis has been shown for retaining this expert. Dr. Shuckett added
little to the mix here. It must be said that Dr. Shuckett was retained out of
excessive caution or abundant zeal and thus the costs attendant with retaining
her must be disallowed (Bell v. Fantini (1981), 32 B.C.L.R. 322 (S.C.)).

[27]        
I am of the view that the fact that an expert’s opinion may overlap with
that of the treating general practitioner does not necessarily equate with
duplication. As plaintiff’s counsel submitted, while the opinion of Dr. Mendoza,
G.P., was valuable, it arguably was not sufficient in the context of a chronic
pain case.

[28]        
I find that when the opinion of Dr. Reebye was requested, it was
necessarily or properly incurred in the conduct of the proceeding. While there
is overlap and some duplication, the time for assessing whether the
disbursement was necessarily or properly incurred is not with the benefit of
hindsight.

[29]        
The $4,400 disbursement for the medical-legal report of Dr. Reebye dated
October 24, 2013 is allowed.

Psychological assessment report of Dr. Goldstein dated October 25,
2013

[30]        
Counsel for the plaintiff submits that the report of Dr. Goldstein
was both necessarily and properly incurred in the conduct of the proceeding, as
Ms. Luce was suffering from psychiatric issues. Enlisting the opinion of a
psychologist was reasonable in those circumstances. He emphasizes they did not
retain the services of a psychiatrist, thereby keeping costs to a minimum.

[31]        
Again, Dr. Mendoza, in his medical-legal report of October 25, 2013,
diagnosed PTSD and stated, “Ms. Luce also experiences PTSD symptoms. She
required counselling to help with her symptoms. She may be prone to flares of
anxiety in the future, which would need episodic counselling”. He refers again
to flare-ups of anxiety, stating “she may also have flares of her anxiety in
the future. She will be more vulnerable to re-injury to her neck and back and
she may be vulnerable to recurrence of her PTSD/anxiety”.

[32]        
The thrust of plaintiff’s counsel’s submission is that while Dr. Mendoza’s
opinion is helpful, given the fact that a psychiatric/psychological condition
was at issue, it was essential to have an expert in regards to that aspect of Ms. Luce’s
injury. If not, Dr. Mendoza would have been subject to being attacked on
his expertise and his experience. Plaintiff’s counsel further references Dr. Mendoza’s
psychological opinion as being a “cursory discussion”.

[33]        
Defence counsel does not attack the necessity of a psychological
opinion; rather, she attacks what she views as an “inordinately high fee for
service, given the opinion provided.” Dr. Goldstein charged an hourly rate
of $275, which defence counsel also concedes was reasonable. However, she
submits that 11.5 hours to produce a seven-page medical-legal report is
excessive. She also emphasizes that, of the seven-page report, only one and a
half pages consisted of opinion.

[34]        
Defence counsel emphasizes that the invoice of Dr. Goldstein
references two hours for review of the records, two hours for a clinical
interview, and six hours to write and dictate the report, when ultimately, the
final opinion consisted of one and a half pages.

[35]        
In Dosanjh v. Martin, 2001 BCSC 1759, Registrar Sainty said that
without good reason, a Registrar should not interfere with the amounts charged
by experts. She states at para. 50:

[50]      ….the defendant should
not be rewarded (and the plaintiff penalised) by a registrar reducing expert
fees except in cases where there is clearly an overcharge or it is determined that
the fees were unreasonable.

[36]        
In this case, I find the defendants’ objections warranted. The clinical
interview of two hours, which followed six psychotherapy sessions, and a bill
for six hours to write a seven-page report containing a one and a half page
opinion is excessive. The disbursement in the amount of $3,162.50 for the
psychological assessment report of Dr. Goldstein dated October 25, 2013,
is reduced to $2,000.

Disbursements for Mr. Nigel Luce

MRI Report dated November 26, 2013

[37]        
Plaintiff’s counsel, in his affidavit, attests that Dr. Reebye saw Mr. Luce
on October 24, 2013, and produced a medical-legal report dated November 27,
2013. In his report, Dr. Reebye stated:

I recommend that an MRI scan of
his brain be conducted, as he has had ongoing tinnitus and now shows issues of
short-term memory deficits which may be in keeping with either post-concussive
syndrome versus his symptoms of difficulty with memory because of his anxiety
symptoms after the motor vehicle accident, as well as his chronic pain
symptoms. I feel that the MRI scan would be warranted also to rule out any
other pathology that may not be related to the motor vehicle accident (i.e. to
rule out lesions or demyelination or lesion in the inner ear). The MRI brain
scan could also show shear hemorrhage, which may have occurred at the time of
the accident.

[38]        
Plaintiff’s counsel attested that with the trial starting on March 31,
2014, five months after Dr. Reebye’s proposed examination, the deadline
for service of reports of about two months from the examination, and a
mediation scheduled for January 2014, a decision was made to obtain a private
MRI because of the impracticality of having the MRI completed in time to be of
use in the litigation.

[39]        
In a letter Dr. Reebye provided to plaintiff’s counsel, dated June
23, 2014, he states in part: “I am of the opinion that Mr. Nigel Luce would
have had to wait for at least one year for the MRI of the head” in the publicly
funded medical system.

[40]        
Ultimately, the MRI of the head was performed on November 26, 2013, but
the results of that MRI showed they were normal. There was no evidence of trauma.

[41]        
Defence counsel objects to the MRI disbursement on the basis that it was
not proper or reasonable, given that two ear, nose, and throat experts (ENT
experts) had examined the plaintiff, neither of which recommended an MRI
despite the fact that Mr. Luce was suffering from tinnitus. Further, if an
MRI was necessary, it should have been done in the public system. While
acknowledging that the public system is a difficult one in which to get a
timely appointment, defence counsel submits that by putting yourself on a
cancellation list, there is always the possibility that you could make yourself
available on short notice to fill a vacancy. Defence counsel emphasizes there
was still six months prior to trial.

[42]        
Defence counsel refers to the case of Jaid v. Chavez, 2013 BCSC
2329, paras. 32-33, where Registrar Sainty stated:

[32] There have been a number of
cases recently dealing with the issue of the necessity, propriety and
subsequent reasonableness of MRI scans. In Phelan v. Newcombe, 2007 BCSC
714, Registrar Blok (as he then was) denied a plaintiff’s claim for the costs
of an MRI scan. In making his decision, the Learned Registrar says (at paras.
16 and 17):

…In general, disbursements that are incurred based on
reasoning that is equivalent to “just in case” or “you never know” will not be
found to have been reasonably incurred or, to put it another way, they will be
found to be extravagant or the result of excessive caution or zeal.

I should add that the mere fact that a physician has
recommended that an MRI scan be done will not guarantee its recovery as a
disbursement. For the most part, diagnostic imaging will be a medical matter
(and any private medical costs would fall under special damages) and its role
as an aid in litigation will be relatively narrow.

[33]      In Parotta v. Bodnar,
2006 BCSC 787, it was confirmed that MRIs are often ordered for more than one
purpose: treatment and diagnosis. If an MRI is ordered for treatment purposes
only, it must be said that it is an item of special damages and not recoverable
on an assessment of costs. If ordered for diagnostic purposes, then it may be
said to be a necessary or proper disbursement and recoverable. It then remains
to be determined whether the cost of the particular MRI was “reasonable”.

[43]        
Defence counsel alleges the disbursement was neither proper nor
necessary.

[44]        
I find that in the circumstances, the MRI of the head was a necessary
and proper disbursement. Mr. Luce was injured in a head-on collision. He
experienced self-reported symptoms consistent with a concussion and tinnitus as
a result of the collision. The opinion of the physiatrist, Dr. Reebye, was
that an MRI was necessary in the circumstances.

[45]        
In order to properly advise a plaintiff concerning the range of possible
outcomes at trial, and to consider the reasonableness of settlement offers,
plaintiff’s counsel is required to determine the extent of the plaintiff’s
injuries and to understand the cause of them. Doing so requires obtaining the
opinion and assistance of experienced and trained medical experts. In the
present case, there is no contrary medical opinion suggesting that the MRI was
not necessary at the time it was arranged. The only medical evidence is that
the MRI was necessary. In these circumstances, I agree with plaintiff’s counsel
when he states that “not getting an MRI wasn’t an option, it had to be done”.

[46]        
Although the MRI ultimately showed the plaintiff’s condition as normal,
the time for assessing whether the disbursement was necessarily or properly
incurred is when the disbursement was incurred, not with the benefit of
hindsight. The disbursement for the MRI in the amount of $1,497.79 is allowed.

Medical-Legal Report of Dr. Kostamo dated September 5, 2013

[47]        
Plaintiff’s counsel attests in his affidavit that Dr. Kostamo was
retained as an orthopedic expert in order to produce a medical-legal report on
the issues of the compression fracture suffered by Mr. Luce and the labral
tear to the right hip, including an opinion on causation of each injury. He
also attests that the defendants had provided the report from Dr. Grypma,
orthopedic surgeon, dated November 13, 2013, where Dr. Grypma opined that
it was unlikely Mr. Luce had sustained a labral tear in the accident.

[48]        
Defence counsel does not question the need for Dr. Kostamo’s
report; they question the amounts charged.

[49]        
Dr. Kostamo charged a total of $4,800 for his orthopedic opinion.
He states in his bill that he charges an hourly rate of $800.

[50]        
Plaintiff’s counsel submits that $4,800 for the report is “in the
ballpark” and that the work done was charged more for the overall service than
the hourly rate.

[51]        
Defence counsel also takes issue with the fact that Dr. Gilbart had
already provided what are titled “independent medical assessments” as early as
March 5, 2013, well before the medical-legal report of Dr. Kostamo dated
February 5, 2013. Defence counsel emphasizes that Mr. Luce was seen by Dr. Gilbart
specifically in relation to Mr. Luce’s hip ailments and produced three
separate reports in relation to the treatment provided. Defence counsel suggests
that had Dr. Gilbart been retained as the expert, rather than Dr. Kostamo,
savings may have been had.

[52]        
Plaintiff’s counsel attests in his affidavit that he did make inquiries
regarding retaining Dr. Gilbart as an expert but was advised on July 26,
2013, that Dr. Gilbart was behind one to two years in preparing reports.
At this point, they went on a wait list to see Dr. Kostamo.

[53]        
Defence counsel further emphasizes that when compared to other experts
retained in the case, such as Dr. Reebye, Dr. Kostamo is charging
roughly $300 an hour more than other experts of similar vintage. By way of
example, Dr. Reebye charged $500 an hour and Dr. Kostamo charged $800
an hour. Also, within the case, Dr. Longridge, the ENT specialist, charged
$700 an hour.

[54]        
In order to assess whether the expert fees charged were “clearly an
overcharge or unreasonable” as per Dosanjh, supra, at para. 50,
there would need to be evidence of comparisons to like specialties. In the
present case, the defendants retained an orthopedic surgeon, Dr. Grypma,
but have not advised what he charged per hour. In my view, that evidence would
have been helpful to compare and contrast fees. I do not find that a comparison
to the amount charged by Dr. Reebye or Dr. Longridge is an appropriate
comparison. I am not satisfied in the circumstances that the fees charged were
clearly over-charged or unreasonable. In the circumstances, the disbursement of
Dr. Kostamo in the amount of $4,800 is allowed.

Psychological Assessment Report of Dr. Goldstein dated November 26,
2013

[55]        
The need for a psychological report is not disputed; rather the dispute
centers around the 16 hours charged for Dr. Goldstein’s seven-page report
at a cost of $4,400. Referring to Exhibit 1, the invoice of Dr. Goldstein
dated November 26, 2013, defence counsel questions the three-hour interview
with Mr. Luce, in addition to the ten visits she had already had with Mr. Luce.
Again, defence counsel takes issue with what was essentially a one-page opinion,
for which Dr. Goldstein charged seven hours to prepare and write. Defence
counsel emphasizes that Dr. Goldstein was Mr. Luce’s treating
psychologist and therefore the amount of time needed to author a report should
have been less than that charged.

[56]        
I agree that taking seven hours to write a seven-page report wherein the
medical opinion is summarized in one page, is excessive when viewed in the
context of the fact that Dr. Goldstein was the treating physician, had
seen Mr. Luce on ten occasions prior to the three-hour interview, an
additional three hours was taken to review the records, and a further one-hour
phone interview was billed. The sum of $3,000 is allowed with respect to the
psychological assessment report of Dr. Goldstein dated November 26, 2013.

Medical-Legal Report of Dr. Reebye dated November 27, 2013

[57]        
Plaintiff’s counsel attests in his affidavit that Dr. Reebye was
hired as a specialist in physical medicine and rehabilitation to provide an
opinion on chronic pain, brain injury, and rehabilitation needs with respect to
Mr. Luce. He attests that Dr. Reebye stated that the accident caused
post-concussive symptoms and a chronic pain cycle and that Dr. Reebye
recommended psychological intervention, cognitive behavioural therapy,
physiotherapy, kinesiology and occupational therapy intervention.

[58]        
The report of Dr. Reebye is objected to in its entirety, the thrust
of this objection being the report is duplicative. In this respect, references
were made to the orthopedic opinions of Dr. Gilbart and Dr. Kostamo,
insofar as orthopedic complaints are concerned; also the opinions of Dr. Goldstein
concerning Mr. Luce’s psychological state and that of Dr. Longridge
in regards to Mr. Luce’s tinnitus. It is alleged that the report of Dr. Reebye
was commissioned as a result of excessive zeal and adds nothing to the
proceeding, as per Dhillon, supra, or, in the alternative, ought
to be reduced due to the duplication in regard to areas already canvassed by
other experts.

[59]        
Plaintiff’s counsel submits that it was necessary for Dr. Reebye, as
the physiatrist, to do a full examination and look at the entire picture. In
doing so, overlap was inevitable. Plaintiff’s counsel also emphasizes the need
to address chronic pain and, in doing so, there is inevitable overlap with
psychological assessments. He submits that a physiatrist was still necessary,
otherwise there was susceptibility to the suggestion that the psychologist was
not a doctor and not familiar with physiology. The plaintiff further emphasizes
the need for a physiatrist, given the medical opinions that underline the
functional and work capacity evaluation and recommendations.

[60]        
While I agree there was overlap with respect to Dr. Reebye’s
opinion, that overlap was inevitable, given the nature of Mr. Luce’s
injuries. Each expert gave their opinion in their specific specialty area, and
each was part of a reasonable overall investigation and exploration of the
scope of Mr. Luce’s injuries. I agree that plaintiff’s counsel was right
to be concerned that his experts not opine beyond the scope of their expertise.

[61]        
Mr. Luce’s medical history was complex. The retainer of Dr. Reebye
was necessary and proper. The disbursement in the amount of $5,000 for Dr. Reebye’s
medical-legal report of November 27, 2013, is allowed.

Medical-Legal Report of Dr. Longridge dated September 17, 2013 and
Testing at VGH dated September 11, 2013

[62]        
Dr. Longridge was retained to investigate and determine the
causation of the tinnitus experienced by Mr. Luce following the motor
vehicle accident. Mr. Luce had been seen by an ENT expert, Dr. Mickelson,
who acted as Mr. Luce’s treating ENT expert. However, plaintiff’s counsel
chose Dr. Longridge as their litigation expert rather than Dr. Mickelson.
Plaintiff’s counsel emphasizes that it is plaintiff’s counsel’s choice who they
retain as a medical expert.

[63]        
Defence counsel suggests that Dr. Mickelson would have been cheaper
and would have been in the best position to evaluate the ENT injuries of Mr. Luce,
given he was the treating physician.

[64]        
Further, defence counsel submits that the testing at VGH for Dr. Longridge
of September 11, 2013, costing $700 would have been a duplication of that
previously done by Dr. Mickelson. This is submitted to be an example of
that duplication and increased costs.

[65]        
I accept that the choice of expert witness rests with counsel. There is
no requirement that they choose the treating clinician. I also accept that an
ENT specialist was necessarily and properly incurred given Mr. Luce’s
tinnitus. I also find that it was necessary for Dr. Longridge to conduct
his own testing in order to provide his medical-legal opinion. It would not
have been appropriate to rely on testing conducted by another physician.
Otherwise, the expert would be open to the allegation that their opinion is
inadmissible or otherwise unreliable.

[66]        
The disbursement of Dr. Longridge for the medical-legal report of
September 17, 2013 is allowed at $4,250, as is the disbursement for the testing
at VGH dated September 11, 2013, in the amount of $700.

[67]        
Taxes with respect to tariff item 2 are allowed as are any applicable
taxes to the disbursements allowed.

“District
Registrar Nielsen”